Opinion
3023/09.
Decided July 27, 2011.
Laurence L. Love, Esq., Forest Hills, NY, Attorney for Plaintiff.
Malissa Manna, Esq., Ahmuty, Demers and McManus, Albertson, NY, Attorney for Defendant.
By notice of motion filed on January 6, 2011, under motion sequence number two, defendant Hsin Min Hsu moves pursuant to CPLR 3212 for an order granting summary judgment in his favor on the issue of liability and dismissing plaintiff Lidia Lopez's complaint. Plaintiff opposes the defendant's motion.
BACKGROUND
On February 6, 2009, plaintiff filed a summons and verified complaint with the Kings County Clerk's Office. Defendant joined issue with a verified answer dated May 1, 2009. On November 8, 2010, a note of issue was filed.
The instant action is for damages for personal injuries sustained in a trip and fall incident. Plaintiff's verified complaint and bill of particulars alleges, among other things, that on September 2, 2008, she tripped, fell and injured herself on a dangerous and defective condition in the sidewalk in front of a building owned by the defendant (hereafter "the subject sidewalk") located in Kings County, New York. Plaintiff further alleges that the dangerous condition was due to defendant's negligent maintenance of the subject sidewalk.
MOTION PAPERS
The defendant's motion papers consist of a notice of motion, an attorney's affirmation and seven exhibits, labeled A through G. Exhibit A contains the summons and verified complaint. Exhibit B consists of the defendant's verified answer, and various discovery demands. Exhibit C is the note of issue. Exhibit D is a transcript of the deposition of the plaintiff taken on August 10, 2004. Exhibit E contains the plaintiff's verified bill of particulars. Exhibit F contains color photographs of the alleged dangerous condition at the location in question. Exhibit G contains the transcript of the deposition of Maria Valera, the defendant's employee, taken on October 19, 2010.
The plaintiff's opposition papers consist of an attorney's affirmation and three exhibits labeled A through C. Exhibit A is the deposition of the plaintiff taken on August 10, 2004. Exhibit B is the deposition of Maria Valera, taken on October 19, 2010. Exhibit C contains black and white photographs of the accident scene.
The defendant submitted an affirmation of counsel in reply.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts ( Guiffirda v. Citibank, 100 NY2d 72, 760 N.Y.S.2d 397). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio, 81 NY2d 1062, 619 N.E.2d 400). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez, 68 NY2d at 324).
In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the non-movant ( Pearson v. Dix McBride, LLC , 63 AD3d 895 , 883 N.Y.S.2d 53 [2nd Dept., 2009]). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" ( Pearson, 63 AD3d at 895).
"Liability for a dangerous or defective condition is predicated upon ownership, occupancy, control or special use of the property Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property" (Noia v. Maselli , 45 AD3d 746 , 746, 846 N.Y.S.2d 326, 327 [2nd Dept., 2007]).
Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner ( Biondi v. County of Nassau , 49 AD3d 580 , 853 N.Y.S.2d 381 [2nd Dept., 2008]). A landowner is not liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner's property unless the landowner caused the defective condition through negligent construction or repair, or as a result of some special use, or if a statute imposes the obligation to maintain the sidewalk on the abutting property owner ( Grossman v. Amalgamated Hous. Corp., 298 AD2d 224, 750 N.Y.S.2d 1 [1st Dept., 2002]).
"The principle of special use,' to the extent applicable here, imposes an obligation upon an entity to maintain a part of the public way in a reasonably safe condition when that part is under its control and is used for its own benefit." ( Taliento v. Consol. Edison Co. of New York Inc., 2010 WL 835456, 2010 NY Slip Op. 30427(U) [NY Sup. 2010]; citing, Noia v. Maselli , 45 AD3d 746 ).
Plaintiff has not alleged either in her complaint, bill of particulars or deposition testimony that the defendant had exclusive control over the gas main or that he used it for his own benefit. Maria Valera's deposition establishes that the defendant did not make special use of the gas main access point on the sidewalk.
NYCRR § 7-210(a) states that "[i]t shall be the duty of the owner of real property abutting any sidewalk to maintain such sidewalk in a reasonably safe condition." NYCRR § 7-210(b) states "the owner of real property abutting any sidewalk shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." NYCRR § 7-210 "imposes tort liability on property owners who fail to maintain city-owned sidewalks in a reasonably safe condition." ( Vucetovic v. Epsom Downs, Inc. , 10 NY3d 517 , 519, 890 N.E.2d 191, 191).
NYCRR § 7-210(c) provides a liability exception for one, two or three family residential real property that is in whole or in part, owner occupied, and used exclusively for residential purposes.
This is an action to recover damages for personal injuries sustained by the plaintiff when she tripped and fell on a defect in the public sidewalk adjoining the defendant's property. It is undisputed that plaintiff is claiming that the defendant negligently maintained the sidewalk but is not claiming that the defendant caused or created the dangerous condition.
The uncontroverted deposition testimony of defendant's witness, Maria Valera, establishes the following facts. Defendant is the landlord of the subject property, an eight-family apartment house, and Valera is his employee. Since 2005, Valera has resided in an apartment in the building and has been responsible for cleaning and mopping the common areas. The property is heated by gas. Valera was shown a photograph depicting the dangerous condition as identified by the plaintiff in her own deposition. Valera described the condition as a hole that had been there since she started working there. She further stated that there is a cover or cap that the neighborhood children keep removing.
The plaintiff provided the defendant with a verified bill of particulars dated November 10, 2009. In paragraphs fourteen and fifteen, the plaintiff states that she tripped as a result of an open abandoned utility hole in the sidewalk in front of the premises located at 236 Irving Avenue. At her deposition conducted on August 10, 2010, plaintiff testified that the aforementioned defect was a break "where they put the gas in, where they put in the tube" (Lopez Dep. 35:7-10, Aug. 10, 2010).
The defendant may rely on the admissions contained in the plaintiff's verified bill of particulars and deposition testimony as evidence of the admitted facts ( See Boutsis v. Reaves, 31 Misc 3d 1238(A), 2011 WL 2237717 [N.Y.Sup. 2011]). The defendant does not dispute that the defect is as an access point to a gas main. Therefore, the defendant may rely on plaintiff's admission that the defect is an access point to a gas main.
The defendant contends that NYCRR § 7-210 does not apply to him because he did not create and is not responsible for maintaining the access point to the gas main in the sidewalk in front of his property. Inasmuch as the subject property is an eight family property within the confines of the City of New York, the defendant is not exempt from the requirements of NYCRR § 7-210.
Although not specifically articulated by the defendant the question that remains is whether an access point to a gas main contained within a public sidewalk is considered part of the sidewalk for purposes of applying NYCRR § 7-210.
The issue presented is similar to the argument advanced by an adjoining property owner in the matter of Vucetovic v. Epsom Downs, Inc. ( 10 NY3d 517 ). In that case the defendant ultimately established successfully that a tree well contained within a public sidewalk is not considered part of the sidewalk for purposes of applying NYCRR § 7-210.
Similarly, the Appellate Division, First Department determined that sidewalk grates are not considered part of the sidewalk and that NYCRR § 7-210 does not impose liability upon a property owner for failure to maintain a sidewalk grate in a reasonably safe condition ( Hurley v. Related Mgt. Co., et al. , 74 AD3d 648 , 904 N.Y.S.2d 41 [1st Dept., 2010]).
The question is resolved by the holding in Noia v. Maselli ( 45 AD3d 746 ). The Appellate Division, Second Department held that summary judgment as a matter of law may be granted to the defendant when he establishes prima facie that he did not have exclusive control over the gas valve cover on which the plaintiff allegedly tripped and fell ( Noia, 45A.D.3d at 747; See Kaufman v. Silver, 90 NY2d 204; Posner v. New York City Tr. Auth. , 27 AD3d 542 ). The court agrees with the defendant's claim that he has no responsibility for the repair and maintenance of the access point of gas mains. The court further finds that the access point of the gas main is outside of the ambit of NYCRR § 7-210. Therefore the defendant has demonstrated prima facie that he neither controlled nor is he responsible for the condition of the access point to the gas main.
The burden now shifts to the plaintiff to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez, 69 NY2d at 324). Plaintiff's attorney submitted an affirmation in opposition to the defendant's motion for summary judgment, which restates the substance of the complaint and alleges that the defendant's legal arguments on tree wells are distinguishable and irrelevant to the present factual scenario. Plaintiff's opposition papers do not raise a triable issue of fact.
Defendant's motion for an order granting summary judgment in his favor on the issue of liability and dismissing plaintiff's complaint is granted.
The foregoing constitutes the decision and order of this court.